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WARNING: Exposure to Video Game Labeling Laws May Be Hazardous to Freedom of Speech

Reps. Joe Baca and Frank Wolf have introduced a bill this week that would require game publishers to add a "clear and conspicuous" warning label to most new video games. HR 4204, the Violence in Video Games Labeling Act, is only the most recent in a series of legislative attempts to restrict or otherwise hinder speech in the form of interactive media.

Even though it is not required by law, many video game developers have been self-regulating games for age-level and content with Entertainment Software Ratings Board (ESRB) ratings since 1994. That system is widely understood in the marketplace, and allows consumers and parents to make informed decisions about their video game purchases.

But under the proposed law, a label that says "WARNING: Exposure to violent video games has been linked to aggressive behavior" would be a required addition for all games rated E (Everyone), E10+ (Everyone 10 and older), M (Mature), or A (Adult), regardless of the contents of the game. Only games released with an EC (Early Childhood) rating would be excluded from the labeling requirement. So games like Tiger Woods PGA Tour 13 or Carmen Sandiego Adventures in Mathwould require the warning, but you could get away without for Dora's Ballet Adventure.

Rep. Baca tries to cloak his anti-speech bill by the inapt comparison for tobacco warning labels in the press release announcing the bill. But while there is a wealth of proof that cigarettes are dangerous, studies simply haven't conclusively demonstrated a causal link between video games and aggressive behavior. One recent study, for example, indicated that "exposure to video game violence was not related to any negative outcomes." [pdf]

Further, in a recent Supreme Court decision to strike down a California law restricting the sale of violent video games to minors, the justices emphatically rejected studies that purport to show such a link: "California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason."

Not only that, but the Court expressly affirmed the robust First Amendment protection due to video games: "Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium." (EFF joined the Progress & Freedom Foundation in filing a brief in that case.)

It's no surprise, then, that Baca's earlier similar proposals have been unsuccessful. The video game blog Kotaku has compared this new bill to the ones Baca introduced in 2009 and 2011 and found only minor differences. Most notable among them: this most recent proposal raises the stakes, covering a broader selection of games and specifying a harsher warning text.

The California law's Supreme Court defeat gives it the highest profile, but there have been other such laws don't make it as far as the Supreme Court. Every other state law that has been challenged on First Amendment grounds has failed lower court scrutiny. Similar laws have been struck down in Louisiana and Illinois, for example, and defeated in Massachusetts.

While these examples went further than Baca's proposal, beyond warning labels to actually restricting the sale of games, the courts have been clear: video games are legally protected speech, and can’t be singled out for special restrictions.

Rep. Baca needs to know that these repeated attempts at misguided legislation based on pseudo-science are not excusable just because they target a new medium. Video games may be a newer art form than the novel, the fairy tale, or the epic poem, but they are no less deserving of constitutional protection.

Tell your Representative today: it's time to stand against HR 4204. If we want to maintain the same level of cultural vibrancy in this new art form as we've enjoyed for all others, we must recognize and protect the freedom of expression embodied within.